Mr. W and University College Dublin(FOI Act 2014)

Whether UCD was justified in refusing access to records relating to UCD Campus Sport and Leisure Ltd (the Company) on the basis of sections 15(1)(a) and 36 of the FOI Act.

31/01/2018

Background

On 14 March 2017 the applicant made a request to UCD for access to four categories of information relating to the Company. He sought access to: detailed income and expenditure reports from 2012 to 2016; amount of rates levied in the gym from 2012 to 2016; detailed breakdown of income for the gym from 2012 to 2016 and details of capital expenditure for 2012 to 2016 listing gym equipment bought. UCD refused access to this information on the basis of section 15(1)(a) of the FOI Act (no such records exist). The decision noted that the records belong to the Company and that UCD does not have access to them. The applicant sought an internal review of that decision and highlighted that the Company was a wholly owned subsidiary of UCD and that the FOI Act provided for a right of access to records under the control of an FOI body. On 7 July 2017 the internal reviewer refused the request on the basis that the Company was a separate legal entity and not under the control of UCD. The internal reviewer further stated that "any records of the company to which UCD has access are held for the purpose of governance and for compliance with company law." Section 36(1)(b) (commercial sensitivity) was applied to any such records. The applicant applied to this Office for a review of UCD's decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between UCD and the applicant as described above. I have also had regard to the correspondence between this Office and both UCD and the applicant on the matter.

Scope of Review

This review is concerned with whether or not UCD was justified in refusing access to records containing four categories of information relating to the Company on the basis that the Company is not an FOI body; is not under the control of UCD and/or that section 36 of the FOI Act applies to any records to which UCD does have access.

Preliminary Matters

I must note at the outset that UCD's engagement with this review has been most unsatisfactory. It was necessary for this Office to issue two section 45 statutory notices requiring the head of the body (the President of UCD) to furnish relevant information as set out in queries put to UCD by this Office for the purposes of the review.

Analysis & Findings

Whether the Company is an FOI body

UCD argued that the Company was not an FOI body and therefore not subject to the FOI Act. It stated that the Company is constituted as a company limited by shares; is a separate legal entity; is not in receipt of any public funding and is not directed or controlled (directly or indirectly) in its actions by UCD.

It seems to me that whether or not the Company is an FOI body is not what is at issue here. Even if I were to accept that the Company is not an FOI body - and I make no finding on that issue - the fact remains that the applicant did not make his request to the Company, but rather made it to UCD, which is, of course, an FOI body. The issue therefore is whether or not UCD has control of the Company's records for the purposes of section 2(5) of the FOI Act. That section states that in the FOI Act a reference to records held by an FOI body includes a reference to records under the control [emphasis added] of that body.

Control

Section 11 of the Act provides for a right of access to any record "held" by an FOI body. The FOI Act does not define "held". However, section 2(5) states that a reference to records held by an FOI body includes a reference to records under the control of that body.

In considering the matter of "control", I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. It seems to me that where records are not physically held by a public body, at the very least the public body concerned must have some legal entitlement to procure the records if they are to be under its control.

The Investigator in this case reminded UCD of the onus on a public body to justify its decision on the basis of section 22(12)(b) of the FOI Act. She set out several factors, some of which were subsequently disputed by UCD, that suggested a strong strategic control and financial nexus between UCD and the Company, namely:

That UCD is the 100% shareholder of the Company and that the Company is described as a wholly owned subsidiary of UCD

That UCD owns all the buildings and facilities of the Company

That the Company's sole function is to manage the facilities on UCD's behalf

That the registered office of the Company is the Administration Building of UCD

That the Company has no presence independent of UCD and that its accounts are part of the "consolidated" accounts of UCD

That all the directors of the Company are senior staff members of UCD.

The Investigator also specifically drew UCD's attention to the judgment of Mr. Justice Cross in Westwood Club Limited v The Information Commissioner and Bray Town Council (Notice Party) [2014] IEHC 375 (the Westwood case). That case involved markedly similar circumstances in that it concerned a request for access to records relating to a company set up by Bray Town Council to run its leisure facilities. Cross J held that control must include the real strategic control of one entity by another and that it also related to the financial nexus between the entities involved. He found in that case that the Council was in control of the Company's records. Despite this Office's drawing particular attention to this case and its relevance to the current review, UCD did not comment on its applicability. This is a binding High Court decision on the issue of control that I must have regard to in this review.

In a submission dated 19 January 2018, UCD reiterated its point that it does not control the records of the Company. It set out several factors highlighting the independence of the Company, such as:

Two of the Company's directors were non-UCD staff members.

The Company has its own operating budget and does not require UCD approval.

It is not in receipt of public funding or subject to audit by the Comptroller and Auditor General.

The Company has its own operating and HR policies and its employment arrangements are separate from UCD.

However, the submission still did not address all of the queries raised by the Investigator, or comment on the relevance of the Westwood case. As noted above, section 22(12)(b) of the FOI Act requires that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified. The onus is on UCD to justify its decision in this case. On the basis of the above, I am not satisfied that UCD has distinguished its level of control over the Company from the very similar circumstances identified in the Westwood case. Given that this is a binding High Court decision, I am not satisfied that UCD has provided me with sufficient information to support a finding that it does not control the records of the Company.

Existence of records & Section 36

UCD stated in submissions to this Office that "any records of the company to which UCD has access are held for the purpose of governance and for compliance with company law." Even if I had been satisfied that UCD does not control all of the records of the Company falling within the scope of the review, it is clear that some records are indeed held by UCD. It is not evident to me whether "governance" and "company law" records have been examined to establish (a) which of them fall within the scope of the FOI request and (b) whether they fall to released under the FOI Act. There has been a complete failure to identify, schedule and consider any relevant records in relation to this review.

Further, it is not sufficient to simply state that section 36(1)(b) applies to a category of records. The harm envisioned by that section must be demonstrated in respect of the content of each particular record. In addition, a public interest balancing test must be carried out in accordance with section 36(3) of the FOI Act as opposed to a mere assertion that the public interest favours refusal of a request.

I find that section 36 cannot apply in this instance as UCD has not identified any records to which it may potentially be applicable.

Fresh decision making process

In cases where it is clear that a public body has not identified and considered records covered by the review, it is normally the practice of the Commissioner to annul the decision, or part of it, and to require the public body to make a new decision. This Office would not generally seek or examine such records and the FOI Act envisages that the first instance decision be taken by the public body which is in a position to assess the content and apply any exemptions where appropriate. The new decision is then notified to the requester by the public body after proper consideration, including notification of affected third parties or compliance with other requirements of the Act. As I have found that UCD has not justified its decision that it does not control the records of the Company, then UCD has not yet considered the relevant records. In order to preserve the rights of the applicant to an internal review and review by this Office, it seems to me that the best course is to annul UCD's decision in respect of sections 15(1)(a) and section 36(1)(b) and to direct a fresh decision making process in accordance with the FOI Act's requirements.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul UCD's decision to refuse the request. I direct UCD to undertake a fresh decision making process and inform the applicant of the outcome in accordance with section 13 of the FOI Act. The effect of this is that UCD is required to make a new, first instance, decision which is subject to the usual rights of internal, and external, review.

Furthermore, for clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the decision begins on the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.